LexRAJINDER KUMAR versus SHRI KULDEEP SINGH & OTHERS
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A B c [2014] 2 S.C.R. 356 RAJINDER KUMAR v. SHRI KULDEEP SINGH & OTHERS (Civil Appeal No. 1873 of 2014 etc.) FEBRUARY 07, 2014 [CHANDRAMAULI KR. PRASAD AND KURIAN JOSEPH, JJ.) DECREE: Execution of ex-parte decree in a suit for specific performance - Held: Merely because it is an ex parte decree, the same does not cease to have the force of the decree - It is a valid decree for all purposes - Once the decree for 0 specific performance attained finality, the defendants cannot thereafter make weak and lame contentions regarding the executability of the decree - Even if there is any ambiguity, it is for the executing court to construe the decree if necessary after referring to the judgment - If sufficient guidance is not E available from the judgment, the court is even free to refer to the pleadings so as to construe the true import of the decree .- No doubt, the court cannot go behind the decree or beyond the decree - But while executing a decree for specific performance, the court, in case of any ambiguity, has necessarily to construe the decree so as to give effect to the F intention of the parties - Code of Civil Procedure, 1908 - 0. 8, r. 10. SPECIFIC RELIEF ACT, 1963: G s.28 - Application for rescission - Suit for specific performance decreed in 1984 - Execution petition filed in 1990 - Application uls 28 filed in 1999 - Held: Though execution petition was filed within the time prescribed, the efflux of time assumes importance and seriousness in the H 356 RAJINDER KUMAR v. SHRI KULDEEP SINGH & 357 OTHERS background of escalation of price in real estate resulting in A liability of vendors towards unearned increase - Court failed to advert to this aspect -- It is pertinent also to note that the said liability for the vendors arose only on account of delayed execution of decree - Further. vendors did not get an opportunity to make their response to oral submission made B by purchaser with regard to deposit of the balance consideration, after passage of around 26 years from the date of decree - As in the case of a decree for specific performance where equity weighs with the court, so is the situation in considering an application uls 28 for rescinding the contract c - On such an application, the court may, by order, rescind the contract "as the justice of the case may require" - In the. peculiar facts and circumstances of case, the trial court should have passed an equitable order while considering the application for rescission - For doing complete justice to 0 parties, it is a case where purchaser should be directed to pay the land value to vendors as per the circle rate notified for the residential property in Category 'A' colonies prevailing during November 16, 2011 to January 5, 2012 -- Purchaser shall also be liable to meet the liability arising by way of unearned increase to be paid to L&DO - Further, directions given in case E the plaintiff does not deposit the amount to be paid to the vendors - Equity - Constitution of India, 1950 - Art. 142. Eight legal heirs of the deceased original owner of the suit property, entered into an agreement to sell the F said property on 29130.07 .1980 with the respondent for a total sum of Rs.14,00,0001- out of which the latter paid Rs.1,40,0001- as earnest money and possession of one garage in the suit property was handed over to him. The balance amount was to be paid on the execution and G registration of the sale deed and delivery of possession. Another legal heir i.e. the son of the deceased son of the original owner, claiming himself as a minor, filed a suit through his maternal grandfather (Suit No. 1428 of 1981) and sought a declaratfon that the agreement for sale was H 358 SUPREME COURT REPORTS [2014] 2 S.C.R. A illegal as he was not a party to it. The respondent filed a suit (Suit No. 280/1982) on 10.01.1982 for specific performance of the agreement against all the nine legal heirs, before the High Court of Delhi. The suit was decreed ex parte on 30.04.1984 and the appeal was B dismissed by order dated 22.03.1985 as time barred. Execution petition was filed on 07 .11.1990. One of the judgment debtors filed application No. 110/1991 objecting to the execution of the decree. Another application EA NO. 111/1991 was filed by defendant no. 9 under 0. 21, r. c 58 of the Code. The single Judge of the High Court, by judgment dated 01.02.2002 dismissed both petitions holding that
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